Val Ricks, ‘Consideration and the Formation Defenses’

Introduction:
The common law defenses to contract formation — duress, misrepresentation or fraud, mistake, and unconscionability — are best justified historically, doctrinally, logically, and from the standpoint of policy, as a response to the plaintiff’s showing of consideration. The next-best alternative, assent, justifies too little. This thesis is proved in two parts. Part I addresses doctrinal history. The defenses existed in the law long before assent became part of the doctrine. When the defenses developed, consideration was with promise the primary touchstone of contractual liability. The formation defenses were often formulated explicitly with reference to the doctrine of consideration, a facet of the defenses that Continues in many statements of them today. Part II addresses logic and policy. Part IIA begins with a discussion of the policy grounds for the consideration doctrine and, incidentally, defends the doctrine. Part IIB shows the logical, doctrinal, and policy coincidence of consideration and the defenses. The defenses all show more than lack of assent, but they fully respond to, and coincide conceptually with, the plaintiff’s allegation of consideration. Part III briefly concludes …

Val Ricks,‘Consideration and the Formation Defenses’. 62 Kansas Law Review 315 (2013).

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